Workplace Romance and Fraternization Policies

University of Rhode Island University of Rhode Island

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Seminar Research Paper Series Schmidt Labor Research Center

2006

Workplace Romance and Fraternization Policies Workplace Romance and Fraternization Policies

Helena P. Amaral

University of Rhode Island

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WORKPLACE ROMANCE AND FRATERNIZATION POLICIES

HELENA P. AMARAL

University of Rhode Island

With the ever increasing number of hours Americans spend at work, many are finding

romance at the workplace. What should the employer consider when deciding whether and

to what extent it should control romantic relationships between supervisors and subordinates

and among co-workers? This paper addresses some of the social and legal issues

surrounding these relationships and whether fraternization policies are a viable tool for

handling the complex human issue of romance in the workplace

Romance in the workplace is not a novelty.

However, it is believed to have increased as a

result of the influx of women into the labor force

in the last 50 years. In 1950, less than 30

percent of the 64 million labor force participants

were women. Between 1950 and 2001, six out

of ten additions to the labor force were women.

As of 2003, women composed 46.6 percent of

the labor force (Kaufman & Hotchkiss, 2003).

Not only are more women than ever before

in the labor force working alongside men, but

the average number of hours spent at work has

also increased since the 1980s. The average

hours worked per week in 1982 were 38

(Kaufman, et al., 2003). It increased to 39.2 by

2001, with forty percent of employees working

exactly 40 hours per week, approximately 12

percent working 50 hours, and 7.8 percent

working 60 hours or more. In addition, the

“ratio of the number of persons at work to the

number employed has also been rising since the

early 1970s. This means that among those

employed, fewer people are taking time away

from work for vacation, sickness, and other

reasons” (Kaufman et al., 2003). While time, in

theory, is perpetual, we are placed in the

confines of a zero-sum game. The more time we

spend at work, the less time we spend with our

friends and families – unless you are one of the

lucky (or cursed) few who work with your

family.

The combination of a gender-mixed

workforce and time spent at the workplace has

the effect of conjuring up human emotions that

often give birth to romance between co-workers

and between subordinates and their supervisors.

This may have significant consequences in the

workplace. Employers are primarily concerned

with potential sexual harassment suits.

Employers have vested interests in protecting

the firm from lawsuits they deem preventable. If

a relationship has the potential to breed a

lawsuit, then the reasonable thing to do is to

prevent the relationship. Of course, it is not

always that simple. Employees, on the other

hand, are concerned with pursuing their interests

as long as it has no bearing on their performance

at work. Is there a way to balance everyone’s

interests while simultaneously protecting both

the employer and the employee?

EMPLOYER’S INTERESTS

Employers may be concerned about office

romances for a variety of reasons. Office

romance has the potential to negatively affect

behavior in the workplace in ways that conflict

with both the business and legal interests of the

employer.

Business Interests

A relationship between a supervisor and

subordinate may lower the morale and

productivity of other employees. Morale may

suffer as a result of alleged favoritism, the extent

of which may or may not arise to the level of a

recognizable legal claim. Nevertheless, this may

cause some resentment towards the preferred

employee. Employees may also lose motivation

to work harder or go the extra mile, because they

believe that the supervisor has “blinders” when

it comes to other employees’ accomplishments.

This loss of motivation quickly turns into a loss

of productivity.

The employer has a vested interested in

maintaining morale because it affects the overall

productivity. One unproductive employee may

Helena Amaral – Fraternization 2

be easy to handle. The employee may feel

pressured by other employees to “pull his

weight,” or management can simply pluck him

out. Morale, however, is like an infectious virus

that permeates the atmosphere and soaks up the

employee’s positive mental and physical energy.

There is no simple solution to remedy lowered

morale.

In a relationship between two co-workers,

resentment may also set in if the two employees

socially withdraw from the group and become

more secluded. Lack of productivity would

most commonly be found amongst the two

dating employees. There’s a risk that they may

pursue the relationship on company time. This

also depends on how discreetly the relationship

develops. Most couples make the extra effort to

not socialize at work and only pursue their

relationship in private. Here, and for the time

being, the business interest is not affected.

Legal Interests

The purpose of adopting an anti-

fraternization policy is to avoid sexual

harassment liability. There are two kinds of

sexual harassment: “quid pro quo” and “hostile

environment.” In quid pro quo the “submission

to or rejection of [unwelcome sexual] conduct

by an individual is used as the basis for

employment decisions affecting such

individual.” “Hostile environment,” is the

circumstance in which “such conduct has the

purpose or effect of unreasonably interfering

with an individual’s work performance or

creating an intimidating, hostile, or offensive

working environment.” 20 C.F.R.

§1604.11(a)(2) and (3). “Title VII covers

mandatory sexual conduct [quid pro quo] as well

as severe and pervasive hostile environments.

The statutory basis is that such situations

constitute a ‘term’ or ‘condition’ of employment

‘because of’ the individual man or woman’s

‘sex’ within the meaning of the Act” (Rothstein,

Craver, Schroeder, & Shoben, 1999).

A relationship between a supervisor and

subordinate presents some legal issues. Is the

subordinate truly a consenting party? Will it

result in favoritism? If an employee makes a

claim, but one that is legally recognizable, it still

has the effect of drawing the employer’s

resources to investigate the claim and defend

itself against it, even if it wins. If the elements

support a legally recognizable claim, not only

are there costs associated with defending the

claim, but the employer may be found liable by

a trier of fact and be subjected to an uncertain

amount of damages.

If the relationship is between co-workers,

the prevailing legal issue is sexual harassment if

and when the relationship should cease and one

of the parties continues to pursue it against the

other’s wishes. The conduct exhibited in pursuit

of the relationship then becomes unwelcome.

Let’s take a quick look at these individual

scenarios.

Consent is not a synonym for welcome.

When we ask whether the subordinate in a

relationship with a supervisor is a consenting

party, what we really mean and should ask is

whether the supervisor’s advances were

welcomed and whether the subordinate’s

continued consent was voluntary. A woman

may consent to a sexual relationship, but not

welcome it. In Meritor Savings Bank, the

plaintiff had a sexual relationship with her

supervisor for a number of years. The

supervisor was a vice-president of the bank. The

plaintiff was initially employed as a teller and

was gradually promoted to branch manager over

a four-year period. She was then fired for taking

excessive use of sick leave. She filed suit for

sexual harassment claiming she was constantly

subjected to sexual harassment during those four

years. She refused his advances at first, but soon

developed a fear of losing her job, so she

consented. The U.S. Supreme Court stated that

“[t]he fact that sex-related conduct was

‘voluntary,’ in the sense that the complainant

was not forced to participate against her will, is

not a defense to a sexual harassment suit brought

under Title VII.” Meritor Savings Bank v.

Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 2406

(1986).

In the 21

Century the supervisor may well be a

woman and the subordinate a man. For simplicity, I

will make references to parties in the traditional

supervisor-male, subordinate-female role.

Schmidt Labor Research Center Seminar Research Series 3

To minimize the potential of similar claims,

some employers have set in place a policy

discouraging supervisor/subordinate

relationships, but takes prophylactic measures

when it occurs. The common approach when

supervisor and subordinate enter into a

consenting sexual relationship is to assign the

subordinate to another supervisor. This does

three things. First, it allows both the supervisor

and subordinate to keep their present positions

and not get displaced within the organization.

Second, it strips the original supervisor of any

power or influence over the subordinate’s

evaluations and general terms and conditions of

employment. Thus, the subordinate is free to

refute any of the original supervisor’s advances

at any time without fear of a resulting adverse

employment action against her. Lastly,

reassigning the subordinate to a different

supervisor also removes the appearance of

favoritism towards the subordinate. However,

reassigning the employee should be done with

care so as to not constitute an adverse

employment action.

It is not always obvious when prophylactic

measures need to be taken, especially when the

parties are diligent at keeping their relationship a

secret. There is also difficulty in determining

whether the relationship is of a romantic,

affectionate and sexual nature (a nurturing

relationship) or whether it is primarily sexual

and unwelcome, but also includes nonsexual

activities, such as dinners or parties. The latter

alludes to quid pro quo harassment, but the true

essence of a relationship is not necessarily

determined by objective means. When the

employer does not know and has no reason to

believe there is anything but a professional

relationship, naturally it will not react. But if the

employer should have reason to believe, even

though it does not have actual knowledge, it may

want to inquire and possibly reassign the

employee anyway, ensuring that it will not alter

the terms and conditions of either party.

Favoritism and sexual harassment. As

stated above, there are two kinds of sexual

harassment, as stated above: “quid pro quo” and

“hostile environment” 20 C.F.R. §1604.11(a)(2)

and (3). Additionally, subsection (g) addresses

sexual favoritism and provides that “[w]here

employment opportunities or benefits are

granted because of an individual’s submission to

the employer’s sexual advances or requests for

sexual favors, the employer may be held liable

for unlawful sex discrimination against other

persons who were qualified for but denied that

employment opportunity or benefit” (emphasis

added).

The “other persons” are co-workers, who

will not compete, or cannot by gender, with the

subordinate for the supervisor’s sexual favors.

At the time of this writing, the United States

Supreme Court has yet to hear a case regarding

third party effects of sexual favoritism.

However, in the summer of 2005, the California

Supreme Court heard Miller, et al. v.

Department of Corrections, et al., 36 Cal.Rptr.

3d 797, 115 P.3d 77, a case in which co-workers

were affected by a supervisor/subordinate(s)

relationship.

In Miller, the plaintiffs were two employees

who were not sexually propositioned, or

subjected to any other traditional form of sexual

harassment, but were nonetheless affected by the

consensual sexual relationship between the

warden of the Valley State Prison for Women

(one of the largest women’s prisons in the

world) and three other subordinates with whom

the warden was having affairs. The subordinates

enjoyed unusual privileges. At first, they were

not selected for promotion by the prison’s

internal promotional committee, but they used

their relationship with the warden and induced

him to ensure their promotion anyway. The

California Supreme Court found that plaintiffs

established a prima-facie case of sexual

harassment on the basis that widespread sexual

favoritism conveys the message that one has to

engage in sexual conduct in order to get ahead in

the workplace. Thus, those who are

disadvantaged by sexual favoritism may bring a

harassment claim.

The court’s ruling has the result of

broadening the scope of sexual harassment

resulting from consensual workplace romances,

thus expanding a firm’s liability. Now, the

employer not only worries about one employee

suing when the relationship goes sour, but also

about potential suits from any other employees

at the firm.

Helena Amaral – Fraternization 4

The California legislature has taken

proactive steps on the issue of training

supervisors. A bill was signed into law on

September 30, 2004 requiring employers with 50

or more employees to complete the first round of

mandatory sexual harassment training for all

supervisory employees. It requires two hours of

sexual harassment training every two years and

must cover specific requirements set by the

statute

(Johnson, 2005).

While the Miller ruling is recent, this same

issue was addressed by the Equal Employment

Opportunity Commission (“EEOC”) in 1990 via

Policy Guidance N-915.048. According to the

EEOC, “Title VII does not prohibit isolated

instances of preferential treatment based upon

consensual romantic relationships. An isolated

instance of favoritism toward a ‘paramour’ (or a

spouse, or a friend) may be unfair, but it does

not discriminate against women or men in

violation of Title VII, since both are

disadvantaged for reasons other than their

genders.” N-915.048 §A. However, §C provides

that if favoritism “is widespread in a workplace,

both male and female colleagues who do not

welcome this conduct can establish a hostile

work environment in violation of Title VII

regardless of whether any objectionable conduct

is directed at them and regardless of whether

those who are granted favorable treatment

willingly bestowed the sexual favors.” This

does not exactly set a bright-line test for

determining an employer’s liability. What

constitutes “widespread”? If one incident is not

enough, how many times beyond the first does it

take? The courts will have to look at the cases

on an individual basis.

Another problem with the EEOC’s Policy

Guidance is that it is just that: guidance. Most

Requirements are as follows: (1) Must be at least

two hours in length; (2) Be effective and interactive;

(3) Provide information and practical guidance to

learners; (4) Cover relevant federal and state law; (5)

Explain prohibitions against and the prevention and

correction of sexual harassment; (6) Include practical

examples to instruct supervisors in the prevention of

harassment, discrimination and retaliation; and (7)

Describe remedies available to victims of sexual

harassment.

courts use EEOC’s Guidance as persuasive

authority, but not necessarily give deference to

the EEOC. While courts view it as a source of

informed judgment, they will rely on the laws of

their specific jurisdiction (Madden, 2002).

Most romances in the workplace are not as

dramatic as Miller, but the case brought the

subject to the attention of employment attorneys

and other human resource professionals

throughout the country and renewed a

nationwide interest in how to best address such

sensitive, personal matters that so easily turn

into a viable legal interest for the employer.

Sexual harassment among co-workers.

While the relationship between two co-workers

blossoms, legal issues are generally not a major

concern. Should the relationship sour and the

employees use poor judgment in their interaction

with each other, it may affect the workplace

negatively by lowering morale and decreasing

productivity. The employer can go through its

usual procedures in dealing with conflicting

employees and loss of productivity and attempt

to resolve the matter without directly addressing

the relationship. However, a legal issue arises if

one of the employees is adversely affected by

the other employee who may have been the

instigator.

A legal issue will arise when one of the

parties to the relationship does not want to end

the relationship and continues to pursue it by

making advances to the other employee. These

amorous and/or sexual advances, once

welcomed, are no longer welcome. The

“victim” may believe this is a personal matter

she brought upon herself and may try to handle

it on her own. She does not want to cause any

trouble at work and therefore does not bring the

matter to the attention of management unless

and until the situation has gone beyond the

victim’s control. Had there not been a

relationship, the likelihood that the harasser

would have been reported earlier is greater.

Still, management is now faced with allocating

its resources in investigating and handling the

claim in-house with great caution. If the victim

is not satisfied with in-house procedures and

results, she may file a sexual harassment claim.

Schmidt Labor Research Center Seminar Research Series 5

It is important that the employer protect its

interests. The employer has a business interest

in maintaining morale and productivity. The

employer also has a legal interest in avoiding

any and all forms of sexual harassment claims.

Both the business and legal interests have the

potential of affecting the employer’s reputation

in the community and its profitability.

EMPLOYEES’ INTERESTS

Employees expect to be left alone in matters

that are private and do not concern their work.

While at work, they expect fairness and equity.

It sounds simple enough. Of course, it is not.

Privacy

Imagine the employer goes into the

employee’s home and scrutinizes his drinking

habits, makes sure that he is properly spending

his leisurely time, makes sure his house is clean

and makes sure that his sex life is

“unblemished!” The employer was the Ford

Motor Company in the early twentieth century.

Surely, we have come a long way since.

Maybe.

Many employers today take adverse actions

against employees for legal, off-the-job conduct

and activities. Employees have recently been

fired, or discriminated against in hiring

practices, for activities such as smoking,

drinking, motorcycling and living with someone

outside of marriage. In the late 1980s tobacco

companies fostered a national movement to

protect employees’ rights to engage in certain

off-the-job activities

(Dworkin, 1997).

Employers will defend termination actions

by using the at-will doctrine, as it is law in most

states. At will is the employer’s legal right to

fire an employee at any time for any reason or

no reason at all. There are certain exceptions for

this. The employer cannot fire at will when

Of course, this at first only involved legislation

protecting employees from discrimination because

they smoked outside of work (Employers were

discriminating against smokers because they raised

health insurance premiums). The tobacco industry

obviously had a great financial interest in ensuring

that its customers did not lose their jobs because they

smoked, or worse, be forced to quit smoking.

there is an employment contract for a fixed term.

The law also forbids employer action that is

based on discrimination against an individual

and/or the activity that is protected by certain

laws (e.g. Title VII; Pregnancy Discrimination

Act, etc) (Rothstein et al., 1999).

The United States Constitution’s right to

privacy protects individuals from government

action, not private employers. In the 1980s and

even through today, courts have upheld a private

employer’s right to enforce anti-fraternization

polices (Patton v. J.C. Penney Co. 747 P.2d 854

(Or. 1986), employee was discharged for dating

a co-worker; Sarsha v. Sears Roebuck & Co., 3

F.3d 1035 (7

Cir. 1993), supervisor was fired

for dating a subordinate employee; Rogers v.

International Business Machines Co. 500

F.Supp. 867 (W.D. Pa. (1980), manager was

fired for relationship with subordinate which

“exceeded normal or reasonable business

associations” Id. at 868).

However, many states have begun

responding by recognizing common law and/or

enacting statutory law providing for protection

against invasion of privacy by private industry.

In California, for example, “employees may

invoke a public policy exception to at-will

employment termination by asserting a violation

of their privacy right under the state

constitution.” In Colorado, it is “a

discriminatory or unfair employ unfair

employment practice for an employer to

terminate one’s employment for engaging in any

lawful activity off the premises of the employer

during nonworking hours unless such a

restriction: (a) relates to a bona fide occupational

requirement or is reasonably and rationally

related to the employment activities… or (b) Is

necessary to avoid a conflict of interest…” Colo.

Rev. Stat. Ann. §24-34-402.5 (2001). (Wilson,

Filosa, & Fennel, 2003).

Other courts have echoed the rationale of the

Colorado statute well before it became law in

Colorado. They will protect the employee’s

associational privacy unless the employer can

show legitimate business and employment

reasons. “Such reasons include a conflict of

interest, an employee in a sensitive or

confidential management position, and a

personal, private or social relationship that

Helena Amaral – Fraternization 6

endangered, injured or jeopardized the

employee’s legitimate business interests”

(Dworkin, 1997). Courts will look at factors

such as the size of the organization; size of the

community; nature of the business; a conflict of

interest; public or private conduct; effect on on-

duty performance; and effect on co-workers.

For example, if a married manager of a Christian

bookstore in a small town has a very open affair

with a married woman, the court may find that it

would be detrimental to the business, as patrons

may be offended and no longer frequent the

store (Dworkin, 1997).

However, a court may require actual proof

of negative impact, not the mere threat of

impact. In Rulon-Miller v. IBM, 208 Cal. Rptr.

524 (Cal. Ct. App. 1984), the plaintiff (female),

a 16-year employee of IBM dated an account

manager. The manager left IBM to work for a

competitor. He was transferred out of state. He

and the plaintiff ceased dating. The manager

was transferred back a year later (still working

for the competitor). He and the plaintiff resumed

dating. The relationship was known by

plaintiff’s supervisor. Approximately one year

after they resumed dating, IBM told the plaintiff

that her relationship presented a conflict of

interest and that she could have a few days to

decide whether to stop dating the manager or

lose her job. IBM, instead made up its mind for

her and terminated her employment before she

exercised her options.

The court found that IBM itself engendered

her right to privacy by circulating a memo that

supported off-the-job privacy. Even though it

may appear that dating an employee of a

competitor is a conflict of interest, the court

found no actual conflict because the plaintiff did

not have access to sensitive information.

Further, there was no interference with her work.

The mere threat of negative impact was not

enough. The court required proof and IBM

provided none.

Decisions of terms and conditions of

employment that are based on off-premises

actions that do not affect the workplace are

increasingly being challenged in courts. The

right to privacy is thought primarily as an

employee interest, but because the legal climate

is changing, it is also evolving into a business

interest.

Fairness & Equity

A relationship between a supervisor and

subordinate usually gives the appearance of

favoritism. This is likely to lower morale. Not

because of the relationship itself, but because of

a perception of inequity. Employees anticipate

that their salary is based on their productivity

and their contributions and that it is fair when

compared to others who are similarly situated.

When their contributions and rewards equal that

of others’ contributions and rewards, then there

is a perception of fairness. This is a subjective

evaluation. Because this idea of equity is a

psychological state, employees are likely to

possess different perceptions of equity (Scholl,

2000).

In a supervisor/subordinate relationship, if it

is perceived that the subordinate is not making

as much of a contribution as the others, it creates

a sense of inequity. If it is perceived that the

subordinate is the recipient of more “perks” than

the others, it also creates a sense of inequity. If

the subordinate receives a promotion when

others are similarly qualified, it again creates

inequity. It is this sense of inequity that lowers

morale. The lowering of morale in turn lowers

productivity.

If it is two employees in a relationship, those

two employees are likewise interested in equity.

If these two employees’ contributions to the firm

do not change (their productivity has not

decreased) since they initiated the relationship

and the firm is not affected by the relationship,

the employees will have an expectation that they

will continue to be treated equitably. Where the

employer’s interests are not concerned, the

employee will be especially unhappy with any

adverse employment actions against them for

legal conduct (romantic activities) with another

employee outside of work.

Discreteness is likely one of the best ways to

combat the perception of inequity, both to the

couple and co-workers. It is something the two

involved employees must consider at the

beginning of the relationship. Every relationship

does not need to be published throughout the

Schmidt Labor Research Center Seminar Research Series 7

organization. Because employees find romance

at the workplace does not mean that romantic

behavior should be exhibited at the workplace.

Many a couple has announced their engagement

to the complete surprise of their fellow

employees and management (1998).

Employees are very protective of their

interests. They do not want their privacy

violated and may feel that the employer has no

place in their personal lives, even if it involves a

fellow co-worker. They also have an

expectation of fairness and equity. They may

feel their rewards and contributions should

match that of others similarly situated in the

organization.

THE WORKPLACE: A BREEDING

GROUND FOR ROMANCE?

Why Do So Many Romances Originate in

the Workplace?

“Pressure, heat and a long time period

combine to produce the tightest bonds in nature

– the diamond. The conditions for bonding a

personal diamond are common in today’s

business environment” (Cooper, 1985). With the

increased number of women in the workforce

and the increased amount of time spend at the

workforce, it is not surprising that men and

women develop close friendships with each

other, and turn to one another for emotional

support. This is likely to happen both to married

as well as single individuals.

Today’s worker spends more time with

business colleagues than with his or her mate.

Outside the regular work schedule, deadlines

and last minute demands from clients further

take precedence over personal activities. This

time spent away from home is not necessarily a

negative experience. The workplace can be

more stimulating and gratifying than the home

life. It produces adrenaline and excitement as

deadlines quickly approach. It produces a sense

of accomplishment and responsibility, both

emotional highs. The office is a world of high

finance, legal stakes, production, sales and

public relations. No one is wearing two-day

beards, curlers or sweats. They are often in their

best behavior. At work, people’s opinions and

ideas are valued. They receive feedback and

recognition and are even awarded raises or

bonuses for good performance.

Home, on the other hand, may not always be

a place to unload. If the employee is rearing

children, it is often a place where there are

screaming kids and dirty dishes, not awards and

recognition. Recognition at home is usually

dictated by the calendar – Valentine’s Day,

birthdays, etc. – and may not be based on

spontaneous appreciation or recognition.

Alternatively, for the single worker, home may

be a place to greet the inconsiderate roommate,

or simply a place where it’s too quiet.

“It is no wonder there is often a highly

sexually charged atmosphere. Working long

hours with attractive people in a plush setting to

accomplish important goals can be quite

seductive” (Cooper, 1985). Eventually people

find out they think more of each other than a

mere professional friendship. If there is mutual

attraction, this friendship may evolve into one of

a romantic, sexual nature.

The workplace described above sounds very

ideal, doesn’t it? It also sounds as if there was

an epidemic of sex and romance at the

workplace. After all, not everyone works in

“plush” settings, and their co-workers don’t

necessarily look like they belong on the cover of

GQ or the latest Victoria’s Secret catalog.

However, it seems that they don’t have to.

Forty-percent of employees polled in 2005 have

been involved in a workplace romance (Parks,

2006). This does not mean that 40% of your

employees are romantically involved with each

other. As a matter of fact, it may be that there

are no existing romantic relationships at your

firm at the moment. It is, however, important to

know that at least 40% of workers have been or

will be, at one time or another during their

careers, romantically involved at the workplace.

This is not a matter of hormones gone wild or a

general regression of emotional intelligence. It

is the human condition. Human needs and

interpersonal attraction has been widely studied

by psychologists and sociologists.

Interpersonal Attraction

Who we are attracted to, where and when

plays an important role in our lives. It is of great

Helena Amaral – Fraternization 8

importance to everyone up and down the

corporate ladder, because our own existence

depended on two other people finding this

attraction. “[i]t’s significance is raised to the

highest power when the role it plays in the

welfare and survival of the species is considered.

For a species to survive, its members need to

find food, to avoid injury, to reproduce, and for

higher animals, to rear the young… As a

consequence, humans are among the most social

creatures in the animal kingdom, and our

evolutionary development has led to a hair-

trigger disposition for making discriminative

judgments along the attraction dimension”

(Lindzey & Aroson, 1985).

In the 1950s researchers believed that

opposites attract because they would

complement each other’s needs, but there is little

support for this proposition. Perceived similarity

instead seems to be a “much more important

criterion. Recent studies have consistently

found that higher perceptions of similarity are

associated with increased levels of relationship

quality” (Hogg & Cooper, 2003) (emphasis

added). Physical attractiveness and reciprocity

of liking are also factors of interpersonal

attraction.

Another factor is the exposure effect.

People have a tendency to marry people from

their own neighborhoods or workplaces, not

because of geographical proximity, but due to

“functional distance,” the extent to which they

cross each others’ paths. Individuals also place

an extremely high value on kindness, loyalty,

and emotional stability “because when we

entrust our psychological (and often physical)

welfare to another human being, it is important

that he or she poses no threat to our safety and

can be relied upon to act in a caring and

consistent fashion” (Hogg et al., 2003). As a

matter of fact, “the association between close

physical proximity and attraction is one of the

best documented within the attraction literature”

(Lindzey et al., 1985).

The workplace is an ideal setting because

not only is there constant exposure, but because

there is constant exposure, individuals are able

to carefully evaluate each other in a non-

threatening atmosphere. They learn who they

perceive to be similar in character, is kind, loyal

and emotionally stable. This is especially

difficult to learn on traditional dates when

everyone is in their best behavior at small and

separate intervals of time.

There is also documentation of professions

in which office romances are especially

common. For example, those who work in

hospitals, at newspaper offices, police stations

and law offices not only tend to spend long

hours together (the exposure factor), but also

work under intense circumstances where

employees depend on each other in situations

that have the potential for catastrophic

consequences. This has the effect of speeding

up the creation of interpersonal bonds. “You get

turned on by competence, by being a team that

wins, by being better together than separate.

That’s erotic and compelling” (Loftus, 1995).

It is important that employers acknowledge

this human dynamic at the workplace.

Employers are justified in wanting to ignore

human sexuality simply because it has nothing

to do with what the employees are getting paid

to do: work. Nevertheless, sexuality walks

through the front door of the workplace with

each and every employee. Most often it is not

romantic or visibly sexual in nature, and

manifests itself in socially acceptable forms: a

glance, a smile. It’s natural to be drawn to the

beauty of the opposite sex. However, sexuality

in the office can also be more expressive, and if

the attraction reciprocal, then romantic.

Employees are human first, professionals

second, but emotional intelligence facilitates the

balancing and cohabitation of the emotional with

the professional. “Emotional intelligence skills

refer to individual skills and competencies that

allow people to deal with their own emotions

and the emotions of others.” There is a trigger (a

particular event that has occurred), an emotional

response, and a behavioral response, if any

(Scholl, 2002). “The term encompasses the

following five characteristics and abilities: (1)

Self-awareness--knowing your emotions,

recognizing feelings as they occur, and

discriminating between them; (2) Mood

management--handling feelings so they're

relevant to the current situation and you react

Schmidt Labor Research Center Seminar Research Series 9

appropriately; (3) Self-motivation--"gathering

up" your feelings and directing yourself towards

a goal, despite self-doubt, inertia, and

impulsiveness; (4) Empathy--recognizing

feelings in others and tuning into their verbal

and nonverbal cues; and (5) Managing

relationships--handling interpersonal interaction,

conflict resolution, and negotiations”

(http://www.funderstanding.com/eq.cfm, 2006).

The ideal employee will be fully adept at

handling these social occurrences as they

develop at the workforce.

The tricky part for the employer is to

determine the extent it wants to control romantic

behavior. Romantic relationships are inherently

complex in themselves. Throw in work

responsibilities, third party reactions,

professional relationships, and sprinkle them

with different levels of power and authority and

you may have a legal minefield. Or do you?

They don’t always become a dramatic event or a

legal issue. Many workplace romances come

and go without issue. Some do not. However,

employers want to minimize any risk of liability

and protect their interests.

CURRENT STATE OF MIND REGARDING

WORKPLACE ROMANCE

In 2005, the Society for Human Resource

Management (SHRM) and the Wall Street

Journal combined resources and conducted a

poll of HR professionals and employees on a

number of workplace romance issues. The poll

was compared to one conducted in 2001. In

both 2001 and 2005, over seventy percent of

firms did not have a formal written or verbal

policy addressing workplace romance. Of those

that did, the majority permitted dating, but

discouraged it. Only nine percent prohibited

dating (Parks, 2006).

In 2001, ninety-five percent of HR

professionals felt that fear of sexual harassment

claims was reason to discourage romance, but

the percentage dropped to seventy-seven percent

in 2005. Instead concerns about conflicts

between co-workers whose relationships ended

grew from twelve percent to sixty-seven percent.

However, instances of decreased productivity,

sexual harassment and complaints of retaliation

declined as also the number of office romances

that ended with a negative outcome (Parks,

2006).

The majority of employees, fifty-two

percent, felt that the consequences for violating

a dating policy should be a formal reprimand.

Only eleven percent felt that termination was

appropriate (Parks, 2006).

The theme of workplace romance has

become so popular that mainstream magazines

have recounted stories of cubicle romance and

provided some practical suggestions for those

wanting to get involved in a workplace romance.

For example, Men’s Fitness, wrote an article in

which “Lydia Ramsey, a business-etiquette

expert and author of Manners that Sell, says

besides maturity, a willingness to negotiate

honestly is a must when dating within the office.

Once you decide you really want a workplace

relationship, you have to talk to each other about

how you’ll conduct yourselves at work and how

you’ll behave if you stop dating. If one of you

has difficulty talking about this, you really

shouldn’t be in this relationship (Kim, 2004).

In 1994, Fortune magazine conducted a

survey, not of HR professionals and employees

who bear the brunt of work details, but of 200

chief executive officers. Seventy-five percent

said that romances between workers were not

the company’s business. Maureen Scully Ph.D.

who focuses on organizational work ethics at

MIT states “[t]oday’s office romances are very

different than the ‘powerful boss seduces

beautiful young secretary’ variety of the past…

These are professional colleagues working

together on intellectually stimulating problems”

(Loftus, 1995). Lisa Mainiero, Ph.D., a

professor of management at Connecticut’s

Fairfield University has identified four common

stages of office romance:

“Fantasy: A sudden romantic interest in a

colleague develops; it may result in dressing up,

daydreaming, and working harder to try to

impress the potential lover.

Honeymoon: The employees realize the

attraction is mutual and act upon it. They go on

a date, begin a relationship, and may be

distracted at work, with eyes only for each other.

Renewal: The relationship enters a stable

phase; concentration on work returns. The

Helena Amaral – Fraternization 10

couple feels comfortable and secure with one

another and gets into a routine.

Climax: The couple makes a decision to

head toward a long-term commitment, such as

marriage, or to break off the relationship.

There’s often a painful period of self-

evaluation” (Loftus, 1995).

Proceeding with Caution

Workers can and should concern themselves

with not disrupting the workplace. Two-thirds

of couples try to keep their relationship a secret,

but most are known as an “item” before any

formal announcements are made. However,

Robert Quinn, Ph.D., an associate professor of

organizational behavior at the University of

Michigan states that “Even at work, everyone

loves a lover. Co-workers tend to be most

supportive of an office romance when they sense

the couple is in love and headed for

commitment” (Loftus, 1995). In other words,

the workplace is not a local bar, a place to find a

“good time.” Do not fish off the company pier.

However, if love is inevitable and a long term

commitment plausible, employees should have a

sense of professional and moral obligation to be

discreet and practice good judgment.

Few employers have come forward with a

positive outlook on office romance. Liz

Lonergan, human resource manager of Ben &

Jerry, openly states “We expect that our

employees will date, fall in love, and become

partners. If a problem comes up, we encourage

employees to let us know and we’ll talk about it”

(Loftus, 1995). Don Steele, partner of an 80-

associate law firm in Los Angeles states “You’re

talking about people who don’t have anything

but their job. Dating is inevitable, but very

carefully done. Sexual harassment issues are a

concern, and attorneys are well aware of the

potential liability issue involved. The

relationships that do form, like the one between

a senior associate and her coworker husband,

tend to be solid, not the spicy stuff on L.A. Law”

(Loftus, 1995).

Southwest Airlines fosters a corporate

culture that is romance-friendly in the name of

morale and productivity. “A happy employee is

a productive employee.” Southwest has 2,200

employees whose spouses also work for the

Company – that’s just over seven percent of its

workforce married to each other. Its culture

attracts many talents. In 2005, out of 260,109

resumes it received, it hired the top 2,766, most

talented and compatible employees from the lot.

In 2006, the company was also listed in

FORTUNE as number three among America’s

Top Ten most admired corporations. It is also

listed for the 10

year in a row in FORTUNE’s

annual survey of corporate reputations.

Additionally, FORTUNE, also ranked Southwest

Airlines in the top five of the “Best Companies

to Work For” in America (SouthwestAirlines,

2006).

Experts on employee rights and sexual

harassment note that stable office relationships

can benefit the employer. This may occur in

three separate phases: First, the employee is

smitten with another and enhances the quality of

his work to impress the other employee. In the

second phase, the employees’ feelings are

mutual, yet still unexpressed, and the employees

spend more time at work in order to spend more

time with each other. Lastly, if it turns into a

stable relationship to the point of marriage or

cohabitation, the couple may work harder to

make the company successful, because both

have so many eggs (income, health insurance,

retirement benefits) in only one basket: the firm

(Bryant, 1998).

Ironically, and somewhat comical, is the

thought that the employer’s recruiting practices

function as a “matchmaking” service. A

recruiter may interview three people who are

similarly qualified for a position. Yet, the

recruiter will choose, not the best dressed, nor

the one who said all the “right” things at the

right time. The recruiter, instead, will choose

the one who best fits the organization; the one

who exudes a character and temperament the

current employees are likely to assimilate. The

recruiter will choose the candidate who will

mesh in with the existing corporate culture and

its people.

The exception to this would be if the firm is looking

for a “change agent.” This is a person hired for a

higher position of authority whose job will be to

Schmidt Labor Research Center Seminar Research Series 11

Some firms believe romance may be

inevitable and do not discourage it and may even

develop a culture that encourages it. Others are

adverse to the occurrence of romance in the

workplace, discourage it, firmly prohibit it and

even discipline its employees for acting on this

emotional phenomenon. Are these other firms

overreacting?

CONTROL OF WORKPLACE ROMANCE

Many say that it is just going to happen.

You can’t outlaw love. Attraction will is

spontaneous and inevitable regardless of what

rules employers set in place. But, hey, aren’t

management human beings too? So why are

they such avid promoters of rules prohibiting

romance? Of course, everyone up the ladder is

by no means immune. They work “smart until

their heart goes Whap!” And they too get caught

up in the “tender trap”

(Weiss, 1998).

However, until, or even if, a day comes when

they fall prey to amorous attraction,

management’s function within the firm is to

protect the business interest. The business has

an interest in controlling workplace romance to

minimize legal liability.

What do Employers Need to Control?

It is important to note the difference

between regulating professional behavior (the

ethical do’s and don’ts and acceptable etiquette

within one’s profession) and regulating behavior

that is searching to meet more instinctive human

needs. There may be a natural conflict.

However, before we try to balance interests.

internally reorganize the whole firm or sections

thereof. Here, the recruiter may be looking for

someone is distinctly different from that of the

current cast of employees.

From Frank Sinatra’s “(Love Is) The Tender Trap.”

Examples of the nationally recognized couples of

uneven power: Microsoft’s C.E.O., Bill Gates,

married a former product manager, Melinda French.

The chairman of G.M., John Smith, married his

former secretary, Lydia Smith. An editor of Harper’s

Bazaar, Liz Tilberis, married her former professor,

Andrew Tilberis. The chairman of Morgan Stanley,

Richard Fisher married his assistant. Also, the

Chairman of Citicorp, John Reed, flew very friendly

skies. He married the company’s jet flight attendant.

What is the employer trying to control that is

different from normal socializing at the

workplace?

Attraction. As previously mentioned,

today’s workplace is composed of nearly half

males and half females. To have complete (not

just paper) control over romantic relationships,

employers would have to be able to control the

source of romance: attraction. It is impossible to

control romantic attraction within the firm when

men and women work closely together. The

best chances of controlling attraction would be

to hire an all male or all female heterosexual

workforce. It is both illegal and unrealistic. A

firm could also attempt to physically separate its

male employees from its female employees. It

would likely create an impractical work

environment and invite disparate treatment suits.

Behavior at work. The employer can try to

control the actual behavior that may lead to

romantic feelings. But what kind of behavior?

One would reasonably expect that the employer

would not want explicit sexual behavior at the

office, or “innocent” behavior that reduces

productivity. But where does one draw the line

in controlling “innocent” behavior in the name

of romance prevention? Would it prevent small

talk between males and females because it may

lead to romance? What about small talk

between those of the same sex? Can employees

of the same sex take a few moments of company

time to pursue a friendship, exchange weekend

stories, but not members of the opposite sex?

Would it take measures to prevent a male and

female talking behind closed doors, but not

members of the same sex? Should the employer

wait until it hears something in the wind and

then closely monitor any of the above behavior?

Behavior/relationships out of work. At

will doctrine allows an employer to fire for any

or no reason as long as it is not an unlawful

reason (discrimination, etc.). Legal out-of-work

conduct may, or not, be legally protected in the

firm’s jurisdiction, but has nonetheless been

attacked in plaintiffs’ right-to-privacy suits.

Imagine a firm so paternalistic as to control

another human being’s romantic endeavors

outside of work. It seems absurd. However, the

employer’s desire to control romantic behavior

amongst employees, even outside of work, is

Helena Amaral – Fraternization 12

directly related to the potential negative

consequences the romance may bring to the

workplace.

Consequences of “bad” breakups.

Employers need to prevent sexual harassment

claims arising from romantic relationships that

have gone “sour.” Employers would not

otherwise be as concerned, if not obsessed, with

office romance. If a supervisor/subordinate

relationship “sours,” the subordinate may make

a claim for sexual harassment asserting that her

participation was not consensual. If it is a

relationship between two employees, the

employer may fear that it may result in

decreased productivity, may lower morale,

create conflict, or result in a sexual harassment

suit because one of the employees continued to

pursue the relationship against the other’s

wishes.

Types of Control

The employer has several means by which

to control office romance, such as the following:

Rules/Policies. The employer can establish

a policy prohibiting it and list possible

consequences for violating the policy. Policies

can range from strictly prohibiting the conduct,

may take a more lenient discouragement

approach, or the employer may decide that no

policy is the best policy.

Corporate Culture. The employer that

may not want to bind itself to a written rule, yet

minimize its risk for sexual harassment liability,

may establish a corporate culture in which the

behavior is frowned on, and “prohibited.” In

this instance, top management frowns upon such

behavior and deems it extremely unprofessional.

Those with intentions of climbing the corporate

ladder will not become involved in an office

romance and will likewise incorporate the

culture and voice such ideals throughout the firm

so that this cultural value is further

disseminated. It is usually in this culture where

the most discretion is exercised when a romance

is pursued (Wilson et al., 2003).

Performance outcomes. If management

frowns upon office romance and is aware of the

romance, the employer may be encouraged to

“punish” the employee by means of performance

reviews. This is the cause and effect rationale.

For example, if an employee’s performance is in

any way affected, regardless of whether it was

due to the romance, the performance review will

reflect the change in performance. There may

be outside factors affecting performance

outcomes. However, because the employer does

not approve of the employee’s behavior, it may

emphasize any negative outcomes on the record.

The employer may also note the employee’s

personnel file its belief for the change in

outcomes: a romantic relationship with a co-

worker.

There are also positive performance

outcomes. This generally occurs when one

employee is trying to gain the respect and

affection of the other employee and in the initial

stage of a relationship. Here, both employees

spend more working so as to increase their

exposure to each other and also want to impress

his or her partner and thus increases productivity

(Loftus, 1995). If the employer discourages

office romance, it may be noticed but not likely

acknowledged, especially if the relationship is

new and not yet “proven” to the firm members.

If the employer does not shun romance,

increased performance may be acknowledged.

FRATERNIZATION POLICY – YEAH OR

NAEH?

Eighteen percent of HR professionals who

responded to an SHRM/WSJ 2005 poll said their

firm had a written policy addressing workplace

romance. This is up three percent from 2001.

This is a significant number until you consider

that the HR professionals responding to such a

poll are likely to come from more sophisticated

firms with HR departments whose firms actually

fund HR with resources like a Society for

Human Resources Management membership.

The percentage of actual firms with

fraternization policies addressing workplace

romance is likely lower than eighteen. Most

firms may just find that romance is too abstract,

subjective and difficult to regulate. Let us

remember that the employer is not just trying to

control traditional illegal (e.g. unwelcome

groping) and unprofessional behavior (e.g.

Schmidt Labor Research Center Seminar Research Series 13

welcomed groping). This is a little trickier. For

those firms that want to exercise some sort of

formal control over workplace romance create

written policies in their employee handbooks.

The policies can either strictly prohibit

workplace romance or merely discourage it by

warning its employees of the dangers of office

romance, although ultimately allowing it. The

other option is to have no policy at all.

Advantages of Strict Policies

The advantage of a strict policy is that it

formally communicates to the employee the

firm’s mandate against workplace romance.

These policies will usually warn of the danger of

romance at the workplace in attempt to justify its

prohibition. Some policies also detail steps the

employees should take if they find themselves

entering into a relationship and list the

appropriate sanctions it will impose on the

employee. These sanctions can range from a

verbal warning to suspension and termination.

The advantage is that the employees are thus

fully informed of the prohibition and act at their

own risk. A sample policy is attached at

Appendix A.

Another advantage is that the policy may

also be a weapon with which the employer may

defend itself should one of the parties to the

romance file a sexual harassment suit, including

one based on favoritism. The employer can

claim that it prohibited such conduct and that the

employee never availed himself to the

procedures set in place to remedy any resulting

harm.

Disadvantages of Strict Policies

The policy may help the employer fend off

sexual harassment suits, but bears the risk of

welcoming other kinds of claims. The downside

to a strict policy, such as the example in

Appendix A, is the potential unreasonable

intrusion into the employee’s privacy. The

employee may make a privacy claim and assert

that mandating that the employee report his

romantic affections and socialization with

another employee to management is an

unreasonable invasion of privacy. However, a

court may strike such a claim based on the idea

that the policy acts as notice to the employee

that a romantic relationship will be monitored

and thus has no such right to privacy.

Many states have also adopted “lawful off-

duty statutes.” It generally prohibits

discrimination against employees for engaging

in legal recreational activities. For example,

New York “defines recreational activities as

‘any lawful, leisure-time activity, for which the

employee receives no compensation and which

is generally engaged in for recreational

purposes, including but not limited to sports,

games, hobbies, exercise, reading and the

viewing of television, movies and similar

material…’” In a suit against Wal-Mart the

New York trial court found that dating was a

protected recreational activity, but the Appellate

Division reversed finding that although dating

may include any and all of the above, it is by

itself not a protected activity. Critics claim that

if overlooks the purpose of the statute which is

to protect employees’ off-duty activities as long

as it does not bear on one’s job performance

(Wilson et al., 2003). However, the Wal-Mart

case consisted of a relationship between a

married employee and a single employee.

Would the court have interpreted the statute as

narrowly had the employees been a young,

responsible couple wanting to start a family?

Employers should be cautious of overly

strict anti-fraternization policies because it is

currently fertile ground for litigation. The

controversy among courts of same and different

jurisdictions invites more litigation on the matter

because privacy and lawful off-duty activities

are not yet settled principles of law in most

jurisdictions. Ambitious employees will be

looking for ambitious attorneys to break new

ground. The opportunity for a plaintiff’s lawyer

to set new precedence may very well be worth

the financial risk of losing a contingency case.

Yes, the plaintiff may lose, but so does the

employer in expending great resources in its

defense. It is helpful to look at jurisdiction-

specific case law, however limited it may be, to

see where the trend is headed.

Advantages of Lenient Policies

A lenient policy, if carefully drafted can

address the interests of both the employer and

employees. The employer can acknowledge the

Helena Amaral – Fraternization 14

possibility of workplace romances, express

discouragement, and yet set up safeguards

through its sexual harassment training and

procedures. The policy should carefully educate

employees on the potential pitfalls of office

romance and establish unambiguous language of

certain conduct that is prohibited in the

workplace (e.g. flirting, inappropriate physical

touching or sexually suggestive conversation).

Some policies discourage but allow for

worker/co-worker relationships, but not

supervisor/subordinate relationships because

they present a much greater likelihood for a

sexual harassment claim and/or may be more

difficult to defend (See Appendices B and C).

Others allow supervisor/subordinate

relationships, discourage it, but have a safeguard

in place where the employee does not report nor

is evaluated by the supervisor with whom she

has the relationship. This is a theoretically

sound safeguard, but the employer should

consider the corporate culture and whether it is

likely the paramour supervisor will have any

indirect influence through the new supervisor

she must now report to.

Disadvantages of Lenient Policies

The employer does not have the luxury of

claiming in its defense that it strictly prohibited

such conduct and that is was absolutely unaware

that any such conduct was taking place. It may,

however, present evidence in its defense that it

provided extensive training in sexual harassment

and that harassment training included the

dangers office romances present.

Love contracts. Other ways employers

may protect themselves while allowing office

romance is through “love contracts.” (See

Appendices D and E) These “contracts” require

employees to disclose their relationships and

sign agreements governing their conduct in the

workplace. It is generally not recommended

because it can cause resentment and backlash.

The employees may also take offense to being

compelled to disclose a personal relationship to

either a colleague or management (Peikes &

Burns).

However, there seems to be some useful

language in both “contracts” regarding the

conduct that should be prohibited at the

workplace (e.g. holding hands, kissing, hugging,

suggestive speech, etc.). Other clauses such as

the right to end the relationship without

repercussion or retaliation or use of arbitration to

resolve all work-related disputes contain

practical procedures and useful language. If the

employer does not strictly prohibit office

romance, this language should make its way into

the fraternization policy so that employees

understand the employer’s expectations about

unacceptable behavior should a romantic

relationship evolve and/or one day dissolve.

Advantages of No Policy

The advantage of not having a written policy

is that it allows management flexibility in

establishing corporate culture and letting it

change as the firm may experience a fluctuation

of employees within the firm. If a firm makes a

marketing decision to change product or revamp

its image, it will have an affect on the types of

employees it will attract and thus likely to affect

corporate culture.

Disadvantages of No Policy

Some companies handle any problems

arising out of the relationships via their existing

disciplinary and sexual harassment procedures.

There may not be great disadvantages of not

having a written policy as long as the company

provides sexual harassment training and its

sexual harassment policy is comprehensive,

meaning that it explains what sexual harassment

is, that it prohibits such conduct and outlines the

procedures employees should take if they feel

they have been sexually harassed. Harassment

is harassment regardless of whether the parties

were engaged in a prior romantic relationship,

thought it may complicate the issue of welcome

and voluntary.

The Cupid Cop: Enforcement issues

“Many an intimate office relationship is

clandestine and confusing; but instead of going

to a therapist or a friend or a novel to help sort

things out, modern lovers are expected to go to

the guy on the 11

floor, in human resources…

Schmidt Labor Research Center Seminar Research Series 15

Modern lovers have to visit what one human

resource manager referred to, with only a little

irony, as the Cupid Cops” (Weiss, 1998).

Companies that disfavor anti-fraternization

policies find that the enforcement difficulties

outweigh the benefits (McNair Law Firm, 1996).

Creation of a rule requires the firm to find

the resources and means of enforcing it. How

much social policing is the firm ready to

undertake? What procedures does it have or will

it put in place? What resources does it have

available or can reallocate for taking violators

through the procedural guidelines? When will it

enforce it? Will the firm wait until a supervisor

bumps into the male and female co-worker in

public? Does the couple have to be holding

hands? Should the employer follow them for a

few minutes looking for expression of amorous

affection?

Once the employer determines that it must

prohibit either romance between all employees

or only between supervisor and subordinates, it

must make the notice to the employees

unambiguous and must enforce the rule

consistently and evenhandedly. Disciplining

only some couples or only the female or male

partner will only invite discrimination suits.

There should also not be an exception for CEOs.

Additionally, the prohibition should apply

without regard to marital status regardless of the

enforcer’s moral values and perceptions. The

firm cannot punish adulterers while allowing (or

“overlooking”) the conduct of unmarried

persons. It constitutes discrimination based on

marital status.

Inconsistent enforcement may give rise to

disparate-treatment claims on the basis of sex,

race or other prohibited bases such as marital

status. At minimum, it may make the employer

look bad in front of the jury (Segal, 2005).

Prohibition also may bring the especially

sensitive issue among supervisor/subordinate:

was it consensual and welcome? Prohibition

may not prevent the relationship, but may

instead push it underground, making it difficult

to produce evidence that it was consensual. If,

however, a relationship is out in the open, it will

be easier to persuade a jury: “If the relationship

was unwelcome, why did you show your

colleagues pictures from the trip you took

together?” (Segal, 2005).

The employer needs to consider the

difficulty in ensuring that the written policy is in

fact workplace reality. The risks are too great if

the policy and practices are not in synch (Segal,

2005).

CONCLUSION

The employer’s primary interests are to

maintain productivity and morale and avoid

liability. The employees are interested in

fairness and equity and their right to privacy in

their personal lives. A very strict company

policy may have the effect of conflicting with

the employer’s interests. If the employer binds

itself into a rigid rule, not only may it have

difficulty enforcing it, it may find itself having

to fire one or more of its valued employees. Not

only are there overturn and training costs

associated with terminating employees, morale

is also likely to suffer.

The employee may also file a privacy

lawsuit. His or her success will be determined

on a case by cases basis, such as whether any

work time was spent in pursuit of the

relationship, whether productivity suffered,

whether there was a reasonable connection

between the rule and business necessity, and

especially whether your particular state has

enacted a statute regarding the matter and how

your courts have interpreted such a statute.

Employees are interested in fairness and

privacy. It is understandable that company time

should not be spent on anything but work-related

activities, be it pursuing a romantic relationship

or goofing off. However, when the employee

does not pursue a relationship on company time,

does not disrupt the workplace and the

relationship presents no conflict to the employer,

the employee will anticipate and expect privacy

in anything that he does lawfully outside of the

workplace.

A well drafted policy should not penalize

employees for lawful activities outside the

workplace. However, it should warn against

potential dangers of workplace romance. It

should also educate its employees and put into

place a strategy for dealing with any conflicts so

Helena Amaral – Fraternization 16

as to minimize or eliminate any potential for

sexual harassment and/or discrimination claims.

“The law of sexual harassment is an area of

shifting sands. Each time that there is evolution,

employers have to go back and check their

practices to make sure they’re not going to get

themselves in trouble” (Greenhouse, 1998).

However, employers should react cautiously and

carefully weigh the pros and cons of the legal

and internal, cultural consequences. The law

does not exist in a vacuum. Any policies should

rationally bear some correlation between

conduct being prevented, the employee’s

performance and weighed against the

employer’s and employees’ legitimate interests.

REFERENCES

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Helena Amaral – Fraternization 2

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Helena Amaral – Fraternization 2

APPENDIX A

Non-Fraternization

[Employer] desires to avoid misunderstandings, actual or potential conflicts of interest,

complaints of favoritism, possible claims of sexual harassment, and the employee morale and

dissension problems that can potentially result from romantic relationships involving managerial

and supervisory employees in the firm or certain other employees in the firm.

Accordingly, managers and supervisors are prohibited from fraternizing or becoming

romantically involved with one another or with any other employee [employer]. Additionally,

all employees, both managerial and non-managerial, may be prohibited from fraternizing or

becoming romantically involved with other employees when, in the opinion of the firm, their

personal relationships may create a conflict of interest, cause disruption, create a negative or

unprofessional work environment, or present concerns regarding supervision, safety, security, or

morale.

An employee involved with a supervisor or fellow employee should immediately and

fully disclose the relevant circumstances to your supervisor or the Vice President so that a

determination can be made as to whether the relationship violates this policy. If a violation is

found, the [employer] may take whatever action appears appropriate according to the

circumstances, up to and including transfer or discharge. Failure to disclose facts may lead to

disciplinary action, up to and including termination.

(Anonymous, 2006).

Schmidt Labor Research Center Seminar Research Series 3

APPENDIX B

Consensual Relationships

It is in the interest of the University to provide clear direction and educational

opportunities to the University community regarding the professional risks associated with

consensual romantic and/or sexual relationships where a definite power differential exists

between the parties. These relationships are of concern for two primary reasons:

• Conflict of Interest. Conflicts of interest may arise in connection with

consensual romantic and/or sexual relationships between faculty or other

instructional staff and students, or between supervisors and subordinates.

University policy and more general ethical principles preclude individuals from

evaluating the work or academic performance of others with whom they have

intimate familial relationships, or from making hiring, salary, or similar financial

decisions concerning such persons. The same principles apply to consensual

romantic and/or sexual relationships, and require at a minimum, that appropriate

arrangements be made for objective decision-making with regard to the student,

subordinate, or prospective employee.

• Abuse of Power Differential. Although conflict of interest issues can be

resolved, in a consensual romantic and/or sexual relationship involving power

differential, the potential for serious consequences remains. Individuals entering

into such relationships must recognize that:

o Reasons for entering such a relationship may be a function of the power

differential;

o Even in a seemingly consensual relationship where power differentials

exists, there are limited after-the-fact defenses against charges of sexual

harassment; and,

o The individual with the power in the relationship will bear the burden of

accountability.

o Such a relationship, whether in a class or work situation, may affect the

educational or employment environment for others by creating an

appearance of improper, unprofessional, or discriminatory conduct.

(WIU, 2006).

Helena Amaral – Fraternization 4

APPENDIX C

Consensual Sexual or Romantic Relationships

a. In General - There are special risks in any sexual or romantic relationship between

individuals in inherently unequal positions, and parties in such a relationship assume those risks.

In the University context, such positions include (but are not limited to) teacher and student,

supervisor and employee, senior faculty and junior faculty, mentor and trainee, adviser and

advisee, teaching assistant and student, coach and athlete, and the individuals who supervise the

day-to-day student living environment and student residents. Because of the potential for conflict

of interest, exploitation, favoritism, and bias, such relationships may undermine the real or

perceived integrity of the supervision and evaluation provided, and the trust inherent particularly

in the teacher-student context. They may, moreover, be less consensual than the individual

whose position confers power believes. The relationship is likely to be perceived in different

ways by each of the parties to it, especially in retrospect.

Moreover, such relationships may harm or injure others in the academic or work environment.

Relationships in which one party is in a position to review the work or influence the career of the

other may provide grounds for complaint by third parties when that relationship gives undue

access or advantage, restricts opportunities, or creates a perception of these problems.

Furthermore, circumstances may change, and conduct that was previously welcome may become

unwelcome. Even when both parties have consented at the outset to a romantic involvement, this

past consent does not remove grounds for a charge based upon subsequent unwelcome conduct.

Where such a relationship exists, the person in the position of greater power will bear the

primary burden of accountability, and must ensure that he or she -- and this is particularly

important for teachers -- does not exercise any supervisory or evaluative function over the other

person in the relationship. Where such recusal is required, the recusing party must also notify his

or her supervisor, department chair or dean, so that such chair, dean or supervisor can exercise

his or her responsibility to evaluate the adequacy of the alternative supervisory or evaluative

arrangements to be put in place. To reiterate, the responsibility for recusal and notification rests

with the person in the position of greater power. Failure to comply with these recusal and

notification requirements is a violation of this policy, and therefore grounds for discipline.

b. With Students - At a university, the role of the teacher is multifaceted, including serving as

intellectual guide, counselor, mentor and advisor; the teacher’s influence and authority extend far

beyond the classroom. Consequently and as a general proposition, the University believes that a

sexual or romantic relationship between a teacher and a student, even where consensual and

whether or not the student would otherwise be subject to supervision or evaluation by the

teacher, is inconsistent with the proper role of the teacher, and should be avoided. The University

therefore very strongly discourages such relationships.

(Stanford, 2006).

Schmidt Labor Research Center Seminar Research Series 5

APPENDIX D

“Love Contract” in the form of a letter:

Dear [Name of Object of Affection]:

As we discussed, I know that this may seem silly or unnecessary to you, but I really want

you to give serious consideration to the matter as it is very important to me…

I very much value our relationship and I certainly view it as voluntary, consensual and

welcome. And I have always felt that you feel the same. However, I know that sometimes an

individual may feel compelled to engage in or continue a relationship against their will out of

concern that it may affect the job or working relationships.

It is very important to me that our relationship be on an equal footing and that you be

fully comfortable that our relationship is at all times fully voluntary and welcome. I want to

assure you that under no circumstances will I allow our relationship or, should it happen, the end

of our relationship, to impact on your job or our working relationship. Though I know you have

received a copy of our company’s sexual harassment policy, I am enclosing a copy so that you

can read and review it again. Once you have done so, I would greatly appreciate your signing

this letter below, if you are in agreement with me.

[add personal closing]

Very truly yours,

/s/

[Name]

I have read this letter and the accompanying sexual harassment policy and I understand

and agree with what is stated in both this letter and the sexual harassment policy. My

relationship with [NAME] has been, and is, voluntary, consensual and welcome. I also

understand that I am free to end this relationship at any time and, in doing so, it will not

adversely impact on my job.

(Kuntz, 1998).

Helena Amaral – Fraternization 6

APPENDIX E

“Love Stipulation” – Acknowledge and Agreement

STIPULATION

The Parties stipulate that:

A. Male employee is presently employed by [the Company] in the position of [position];

B. Female employee is presently employed by [the Company] in the position of

[position];

C. Female employee is not presently, and has never been, under the direct supervision of

male employee. Although the professional obligations and work responsibilities of

male employee and female employee occasionally involve interaction on a

professional level, the regular assignments and job tasks of male employee and

female employee do not require, necessitate or provide occasion for such interaction;

D. Male employee and female employee each, independently and collectively, desire to

undertake and pursue a mutually consensual social and/or amorous relationship

(“Social Relationship”) with the other;

E. Male employee’s desire to undertake, pursue and participate in said Social

Relationship is completely and entirely welcome, voluntary and consensual and is

unrelated to the Company, male employee’s professional or work-related

responsibilities or duties, or male employee’s and female employee’s respective

positions in the Company or business relationship to each other . As of the date of

this Acknowledgment and Agreement is executed by male employee, male employee

agrees that nothing in any way related to, stemming from, or arising out of his

relationship with female employee, be it their business-related interaction or their

Social Relationship, constitutes, has resulted in, or has caused a violation of the

Company’s Sexual Harassment Policy or any law or regulation;

F. Female employee’s desire to undertake, pursue and participate in said Social

Relationship [repeat paragraph E above, vice versa, to cover female employee];

G. Male employee has entered into said Social Relationship after having discussed in

depth with female employee the ramifications and implications of entering into a

Social Relationship with a co-worker of female employee’s professional position and

after having the opportunity to discuss such matters with counsel of choice or any

other person of his choosing;

H. [repeat paragraph G above, vice versa, to cover female employee];

Schmidt Labor Research Center Seminar Research Series 7

[APPENDIX E continued]

AGREEMENT

1. Male employee and female employee have, after reading this Acknowledgment and

Agreement, carefully reviewed the Company’s Sexual Harassment Policy, a copy of

which is attached hereto. Male employee and female employee understand and agree

to abide by and be bound by said Policy.

[The agreement then requires then requires the signers to notify the company

representative witnessing the agreement of any violations of the sexual harassment

policy or related laws, or if the relationship is “negatively affecting in any way the

terms and conditions” of their employment. But there are other options:]

2. If, for any reason, either employee does not believe that reporting said violation,

suspected violation or incident to Company representative would result in a full and

fair investigation and remedy, either employee may instead report said violation,

suspected violation or incident to the Director of Human Resources of the Company.

Said report may be written or verbal and should include details of the incident and

names of witnesses.

3. The Company shall immediately and impartially investigate said violation, suspected

violation or incident and take any and all appropriate remedial action, up to and

including termination, pursuant to established Company policy and law. Remedial

action will be commensurate with the circumstances. Appropriate steps will also be

taken to deter any future violations or incidents.

4. Male employee and female employee understand and agree that conduct or speech in

the workplace which is sexual or amorous may be objectionable or offensive to

others. Therefore, male employee and female employee agree not to engage in such

conduct on Company property or when performing work-related tasks in public areas.

Such prohibited conduct includes, but is not limited to, the following: holding hands

or touching in an affectionate or sexually suggestive manner; kissing or hugging;

romantic or sexually suggestive gestures; romantic or sexually suggestive speech or

communications, whether oral or written; and display of sexually suggestive objects

or pictures.

5. Male employee and female employee acknowledge and agree that he and she,

respectively, has the right and ability to end sai Social Relationship at any time

without repercussion of any work-related nature, and without retaliation of any form

by the other.

6. While the Social Relationship continues male employee and/or female employee will

not request, apply for, seek in any way, or accept a direct supervisor or reporting

relationship by or between female employee and male employee.

Helena Amaral – Fraternization 8

[APPENDIX E continued]

7. Male employee and female employee have executed and agree to be bound by the

Company’s Agreement to Abide by Arbitration Procedure which shall set forth the

exclusive remedy for, and shall constitute the exclusive forum for resolution of, any

and all disputes which arise or may arise out of the Social Relationship and any

claims of harassment, discrimination or retaliation by or between male employee and

female employee;

8. The Parties, having read all the foregoing, including attachments, and having been

notified of the right to seek the advice of counsel and having understood and agreed

to the terms and conditions of the Acknowledgment and Agreement, do hereby

execute said Acknowledgment and Agreement by affixing their signatures hereto.

(Kuntz, 1998).